Same-sex ruling will trigger next round of fights

Jayne Rowse, left, and April DeBoer speak with their attorneys, Carole Stanyar and Mary Bonauto, during a news conference after arguments were heard in their case at the U.S. Supreme Court in Washington, D.C., in April. The Supreme Court is expected to rule on the case, which could legalize same-sex marriages nationwide, before the end of the month.(Photo: Mandi Wright Detroit Free Press)

WASHINGTON – A U.S. Supreme Court ruling allowing same-sex marriages in Michigan and across the nation will have sweeping ramifications for gays and lesbians, giving those who marry many rights that opposite-sex couples have, including tax benefits, hospital visitations, joint adoptions and more.

Even if the court rules, as many expect this month, to overturn same-sex marriage bans in Michigan and three other states — and by extension in the rest of the country — it won't settle every legal question faced by same-sex couples. Much will fall to the states themselves to sort out.

In Michigan, for example, there's no statewide statute barring discrimination on the basis of sexual orientation in housing, employment or public accommodation. A landlord might not have to rent to gays or lesbians or a restaurant could deny service no matter how the court rules, unless there is a local ordinance to the contrary.

On the other hand, the state bars discrimination on grounds of familial or marital status, so if a pizzeria refuses to send a pie to gay couple's table because they're married, it could end up in court.

And it's not just that: Same-sex couples could see lengthy battles over everything from getting parental gender references off birth certificates, to working out rules for divorce proceedings. Some private-employer health plans could contend they may not have to cover same-sex spouses in states like Michigan where sexual orientation is not protected. And states will have to sort out whether a same-sex spouse is the legally presumptive parent of her partner's child if she becomes pregnant.

"It gets very complicated," said Ineke Mushovic, executive director of the Denver-based Movement Advancement Project. "If we have an affirmative Supreme Court decision, there's no doubt it's going to be an amazing moment. ... Yet we need people to understand how much inequality will still remain."

In Michigan, according to Mushovic and others, the situation is worse than in many other states. Her group recently put out a report (www.lgbtmap.org/equality-maps) rating states on their policies toward lesbian, bisexual, gay and transgender (LBGT) people. Michigan was near the bottom.

But while same-sex marriage supporters hope a decision by the Supreme Court sets a precedent that will help them receive equal protection under state laws, opponents across the U.S. are already trying to carve out exemptions they believe could survive a court ruling.

Two weeks ago, Gov. Rick Snyder signed bills allowing faith-based adoption agencies to reject same-sex applicants. In North Carolina, legislators voted to let courthouse staff refuse to process marriage licenses or perform ceremonies if it offended their religious beliefs. In Alabama, a court barred judges from issuing marriage licenses to same-sex couples despite a federal court order to do so.

In Lansing, state Rep. Todd Courser, R-Lapeer, said last week he wants to allow only clergy to perform marriage ceremonies in Michigan, taking local and judicial officials out of the process. If enacted, it would curtail same-sex weddings since religious officials can't be forced to perform such a ceremony — but its constitutionality on equal protection grounds could be in serious doubt.

Taken together, it means a U.S. Supreme Court decision on same-sex marriage will be far from the last word on gay rights and LBGT equality, with many more battles to be fought in statehouses and in the courts. In fact, in its legal brief to the Supreme Court, the U.S. Conference of Catholic Bishops practically guaranteed "a panoply of church-state litigation for decades to come."

"If the Supreme Court issues a ruling that basically contradicts the will of the vast majority of people, people of faith, Christians, will take action to limit the extent to that decision and also take action to protect their basic fundamental freedoms," said Richard Thompson, president of the Thomas More Law Center in Ann Arbor, which promotes and defends faith-based values.

"This will not end the case, this will not end the issue, just like Roe v. Wade did not end the issue with abortion," he said. "This fight will continue for a long, long time."

Questions will remain

Two Hazel Park nurses, April DeBoer and Jayne Rowse, brought the challenge to Michigan's 2004 voter-passed, same-sex marriage ban, which became the centerpiece of a set of cases argued before the U.S. Supreme Court in April. Gay rights supporters are preparing for what they believe will be a seminal moment in their drive for equality when an opinion is issued by month's end.

But even the court recognized that a decision in their favor would leave questions. The First Amendment would protect religious officials from being forced to perform ceremonies against their beliefs. But, as Chief Justice John Roberts asked, would a religious college be required to house same-sex couples? The answer is unclear.

"That is going to depend on how states work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not," U.S. Solicitor General Donald Verrilli Jr. said while arguing in support of the plaintiffs before the court in April.

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Jayne Rowse, left, and April DeBoer speak at a press conference after arguments were heard in their case at the U.S. Supreme Court in Washington D.C. Tuesday Apr. 28, 2015. Mandi Wright, Detroit Free Press

Glenna DeJong, 54, left and her wife Marsha Caspar, 53, from Ingram County in Michigan, kiss in front of the U.S. Supreme Court as they gather to show support with the National Marriage Challenge Tuesday Apr. 28, 2015. Mandi Wright, Detroit Free Press

Jayne Rowse, left, and April DeBoer speak with their attorney Carole Stanyar and Mary Bonauto, at right, during a press conference after arguments were heard in their case at the U.S. Supreme Court in Washington D.C. Tuesday Apr. 28, 2015. Mandi Wright, Detroit Free Press

Mary Bonauto looks over at Gloria Allred who gives her a thumbs up as Jayne Rowse, and April DeBoer exit after arguments were heard in their case at the U.S. Supreme Court in Washington D.C. Tuesday Apr. 28, 2015. Mandi Wright, Detroit Free Press

April DeBoer waves from the steps of the U.S. Supreme Court as she enters with fellow plaintiffs her attorneys and her partner Jayne Rowse in Washington D.C. Tuesday Apr. 28, 2015. Mandi Wright, Detroit Free Press

Jayne Rowse waves as she and her partner April DeBoer enter the U.S. Supreme Court in Washington D.C. Tuesday Apr. 28, 2015 accompanied by their attorneys and other plaintiffs in the case to overturn the ban in same-sex marriage nation wide. Mandi Wright, Detroit Free Press

April DeBoer, 44, and Jayne Rowse, 50, pose for a photo on the steps of the Lincoln Memorial where Martin Luther King Jr. gave his "I Have a Dream" speech while site seeing in Washington D.C. Sunday Apr. 26, 2015 before their court date on Apr. 28th. Mandi Wright, Detroit Free Press

April DeBoer, 44, left and Jayne Rowse, 50, climb the steps of the U.S. Supreme Court Saturday Apr. 25, 2015. The couple are plaintiffs who will be listening to arguments regarding same-sex marriage on Tuesday Apr. 28, 2015. Detroit Free Press

In other words, since neither Michigan nor the federal government has a statute affirmatively prohibiting discrimination based on sexual orientation, it's an open-ended question — and could lead to more litigation. In the 1980s, the court ruled the Internal Revenue Service could pull a religious university's tax status for refusing to accept interracial couples, but then there were laws prohibiting racial discrimination.

And even though the court could essentially find a constitutional duty to allow same-sex marriages, generally speaking, private actors — individuals, businesses — aren't bound by constitutional requirements but by laws passed by Congress or legislative bodies.

So, while a ruling for DeBoer and Rowse and the other plaintiffs will bring vast new benefits to same-sex couples in a state, like Michigan, where the practice is banned — including Social Security survivor benefits, the right to file wrongful death suits in a spouse's name, and the right to make medical decisions for an incapacitated spouse — it won't settle everything.

"We are no longer going to see federal rules that discriminate on the basis of sexual orientation" if there's a ruling for same-sex marriage supporters, said University of Michigan Law professor Richard Primus, "but that doesn't mean we'll have laws that prohibit private entities from discriminating."

Denise Brogan-Kator, with the Family Equality Council in Washington, D.C., and a former official with Equality Michigan, said although a decision for same-sex marriage will let married spouses adopt their partners' children, it won't necessarily guarantee the same rights to a person in an unmarried relationship — even if she and her partner jointly decide to raise children.

"Currently, a different sex couple can have a child, and both, without marriage, are held responsible for caring for that child," she said. "A same-sex couple can do the same thing (have a child). But, say they split up or the biological mother dies ... then what happens?"

Cultural wars

There are more than 100 Michigan laws that mention the words "married," "husband," "wife," "father" or "mother," all of which could be affected, at least subtly, by the Supreme Court's decision.

But the effect may not be as subtle as it seems, said Mae Kuykendall, a professor at the Michigan State University law school. In a recent essay, she argued that forcing all states to permit same-sex marriages "constitutionalizes" the marriage institution.

That, she said, could mean that family law subjects previously left to the states — paternity, divorce rules — would become constitutional questions, with the federal courts and Congress, neither having any experience at adjudicating family law matters, getting involved.

"We could have Congress passing very liberal rules or we could have Congress in conservative control passing conservative rules," she said.

She said it would be better for the court to simply require states to recognize same-sex marriages performed legally elsewhere. States wouldn't be in the position of being forced to formalize laws recalcitrant legislators won't accept; family law matters would be sorted out by local judges.

But recognition was one of the questions considered, though at least one justice — Roberts — said to do so would, in a matter of years, be akin to legalizing it everywhere.

Whatever the court decides, the cultural wars will continue.

Just last week, Jay Kaplan with the ACLU of Michigan warned of legislation passed in both chambers in Lansing that limits local rules on employment practices and pay, saying that despite a provision allowing local governments to keep policies against employment discrimination, another section of the measure could contradict that.

He also noted a Religious Freedom Restoration Act, like the one that stoked controversy months ago in Indiana, is alive in the Michigan Legislature, though Snyder has said he would veto such a measure without an expansion of the state's Elliott-Larsen Civil Rights Act to include those in the LGBT community.

"There's a lot of stuff in the pipeline. They've been pretty antagonistic already," Kaplan said, referring to same-sex marriage opponents.

State Rep. Gary Glenn, R-Midland, who was one of the authors of the 2004 same-sex marriage ban, said there is no question that, if the court overturns it, he and others in the state Legislature will be looking for ways to lessen its impact. He has already asked for legislation to be drawn up protecting pastors from being forced to marry same-sex couples — though it's pretty clear they wouldn't be.

"We'll be looking at other ways to protect the religious freedoms and First Amendment guarantees of all citizens in the wake of whatever the U.S. Supreme Court decides," he said.

Move to blunt effects of Supreme Court's same-sex marriage decision

By the end of the month, the U.S. Supreme Court is expected to rule on a challenge to same-sex marriage bans in Michigan and elsewhere. But in Lansing and other state capitals, some opponents to same-sex marriage are moving to limit the ruling's impact. In Michigan, for instance:

-- Gov. Rick Snyder signed bills allowing faith-based adoption agencies to refuse service to prospective parents — like same-sex or unmarried couples — if it violates their religious beliefs.

-- State Rep. Gary Glenn, R-Midland, is urging legislation that would ensure that pastors and other religious officials can't be compelled to officiate at same-sex marriages, though the First Amendment already protects them.

-- State Rep. Todd Courser, R-Lapeer, is proposing legislation that allows marriage ceremonies to be performed only by religious personnel, who could object to marrying same-sex couples. The political future — and constitutionality — of such a move is far from certain, however.

-- The American Civil Liberties Union is suspicious of a measure recently passed in Lansing that prohibits localities from having employment rules more strict than state or federal regulations, even though it specifically states it does not apply to local discrimination protections.